TITLE 9. account therein alleged; but, unless he file a verified copy thereof with such pleading, and serve the same on the adverse party, he shall, within ten days after a demand thereof in writing, deliver to the adverse party a copy of such instrument of writing, or the items of an account, verified by his own oath, or that of his agent or attorney, to the effect that he believes it to be true; or be precluded from giving evidence thereof. The court, or a judge thereof, may order a further account when the one delivered is defective, and the court may, in all cases, order a bill of particulars of the claim of either party to be furnished. how strued. con Pleadings, SEC. 56. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties. redundant matter stricken out. Irrelevant & SEC. 57. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out on motion of any person aggrieved 5 How. 192; thereby; and when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment. Sanf. 660. Pleading of judgments. Of conditions precedent. 5 How. 107. Private statutes. libelous mat 5 SEC. 58. In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction. SEC. 59. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated, generally, that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specific sum, which he claims. SEC. 60. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. Statement of SEC. 61. In an action for libel or slander, it shall not be necessaHow. 171. ry to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published, or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish on trial, that it was so published or spoken. Answer thereto. SEC. 62. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, TITLE 10. he may give in evidence the mitigating circumstances. of cover prop SEC. 63. In an action to recover the possession of property dis- Answer defendant in trained doing damage, an answer that the defendant, or person by actions to rewhose command he acted, was lawfully possessed of the real property diserty upon which the distress was made, and that the property dis- trained. trained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. SEC. 64. The plaintiff may unite several causes of action in the Joinder same complaint, when they all arise out of: 1. Contract, express or implied; or, 2. Injuries, with or without force, to the person; or, 3. Injuries, with or without force, to property; or, 4 Injuries to character; or, 5. Claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same; or, 6. Claims to recover personal property, with or without damage for the withholding thereof; or, 7. Claims against a trustee, by virtue of a contract, or by operaration of law. But the causes of action so united, must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. of causes of action. not denied, SEC. 65. Every material allegation of the complaint, not specifi- Allegation cally controverted by the answer, and every material allegation of a new matter in the answer, not specifically controverted by the reply, shall, for the purposes of the action, be taken as true; but the allegation of new matter in a reply shall not, in any respect, conclude the defendant, who may, on the trial, countervail it by proofs, either in direct denial, or by way of avoidance. legation. SEC. 66. A material allegation in a pleading, is one essential to Material althe claim or defence, and which could not be stricken from the pleading without leaving it insufficient. TITLE X. Mistakes in Pleadings and Amendments. SEC. 67. Material variances, how provided for. 68. Immaterial variances, how provided for. 69. What to be deemed a material variance. 70. Amendments of course. 71. When a party may plead over, after decision on demurrer. 72. Amendments by the court. 73. Amendments after demurrer. 74. Suing a party by a fictitious name, when allowed. 75. No error or defect to be regarded, unless it affects substantial rights. riances, how 7 Barb. 18; 2 SEC. 67. No variance between the allegation in a pleading and Material vathe proof shall be deemed material, unless it have actually misled provided for. the adverse party to his prejudice, in maintaining his action or de- Sanf. 421, fence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of 719. TITLE 10. the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as shall be just. Immaterial variances, ed for. What to be deemed a variance. SEC. 68. When the variance is not material, as provided in the how provid- last section, the court may direct the fact to be found according to 6 Barb. 80s, the evidence, or may order an immediate amendment, without costs. SEC. 69. When, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the two last sections, but a failure of proof. Amendments course. may over. of SEC. 70. Any pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had, at any time before the period for answering it shall expire; in such case, a copy of the amended pleading shall be served on the adverse party. When party SEC. 71. After the decision upon a demurrer, if it be overruled, plead and it appears that such demurrer was interposed in good faith, the court may, in its discretion, allow the party to plead over upon such terms as may be proper. If the demurrer be sustained, either party may amend any pleading demurred to, upon such terms as may be just, and he shall serve a copy of the same, as amended, on the adverse party, within such time as may be prescribed by the court. Amend ments by the court. Amendment after demurrer. Suing a party by a fic when allow ed. Error pleading, disregarded. in SEC. 72. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved. SEC. 73. The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this act, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. SEC. 74. When the plaintiff shall be ignorant of the name of a titious name, defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. SEC. 75. The court shall, in every stage of an action, disregard when to be any error or defect in the pleadings or proceedings which shall not 4 Barb. 248. affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Supplemen- SEC. 76. The plaintiff and defendant respectively, may be allowed, plaint, an- on motion, to make a supplemental complaint, answer, or reply, ply. 5 How alleging facts material to the case, occurring after the former com420; 4 Barb. plaint, answer, or reply. tal swer 541. com TITLE XI. Provisional Remedy by Arrest and Bail. SEC. 77. Arrest on civil process. 78. When defendant may be arrested in civil action. 79. Order of arrest, by whom made. 80. Affidavits to obtain order. 81. Security by plaintiff before order of arrest. 82. Order, when made, and its form. 83. Affidavit and order to be delivered to sheriff, and copy to defendants. 84. Arrest, how made. 85. Defendant to be discharged on bail or deposit. 86. Bail, how given. 87 & 88. Surrender of defendant. 89. Bail, how proceeded against. 90. Bail, how exonerated. 91. Sheriff, when to file order of arrest and undertaking. Plaintiff must except to undertaking within ten days. 92. Notice of justification. New undertaking, if other bail. 93. Qualifications of bail. 94 & 95. Justification and allowance of bail. 96. Deposit of money with sheriff. 97. Payment of money by sheriff into court. 98. Substituting bail for deposit. 99. Money deposited, how applied, or disposed of 100. Sheriff, when liable as bail; and his discharge from liability. 101. Proceedings on judgment against sheriff. 102. Bail liable to sheriff. 103. Fees of sheriff for keeping prisoner; and liability of plaintiff therefor. 104. Prisoner may be discharged on plaintiff neglecting, after demand, to pay sher iff's fees. 105. Motion to vacate order of arrest, or reduce bail; and affidavits on motion. 106. Order of arrest when vacated; bail when reduced. TITLE 11. on civil process. SEC. 77. No person shall be arrested in an action at law, except Arrest as prescribed by this act; but this provision shall not apply to proceedings for contempt. SEC. 78. The defendant may be arrested as hereinafter prescribed, when in the following cases: de fendant may be arrested. 1. In an action for the recovery of damages on a cause of action 5 Barb. 509. not arising out of contract, when the defendant is not a resident of the territory, or is about to remove therefrom, or when the action is for a wilful injury to person or to property, the defendant knowing the property to belong to another. 2. In an action for the recovery of money, or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the territory, with intent to defraud his creditors. 3. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by a public officer or officers of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment. 827; 3 Sanf. 707. 4. In an action to recover the possession of personal property 5 How. 148, unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. TITLE 11. 5. When the defendant has been guilty of a fraud in contracting 5 How. 143; the debt, or incurring the obligation for which the action is brought, 8 Barb. 169. or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. 2 Sanf. 729. Order of arrest. How obtain ed. Security by plaintiff. Order, when made. fidavit and 6. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for a wilful injury to person or property. SEC. 79. An order for the arrest of the defendant shall be obtained from a judge of any district court in this territory. SEC. 80. The order may be made when it shall appear to the judge, by the affidavit of the plaintiff, or any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-eight, which affidavit shall be supported by the additional affidavit of some other disinterested person, that the case is one of those mentioned in section seventyeight. The affidavits shall be either positive, or upon information or belief. They shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavits shall be filed with the clerk of the court in which the action is brought. SEC. 81. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least two hundred dollars. If the undertaking be executed by the plaintiff without sureties, he shall annex thereto an affidavit that he is a resident and householder, or freeholder within the territory, and worth double the sum specified in the undertaking, over all his debts and liabilities. SEC. 82. The order may be made to accompany the summons, or at any time afterwards before judgment. It shall require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending. Service of af- SEC. 83. The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof. order. R. 182. Arrest. 5. J. SEC. 84. The sheriff shall execute the order by arresting the defendant, and keeping him in custody until discharged by law. when to be Defendant, SEC. 85. The defendant, at any time before execution, shall be discharged. discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest as provided in this act. SEC. 86. The defendant may give bail, by causing a written undertaking to be executed in favor of the plaintiff by two or more |